Child custody and vaccines – reviewing two disputes in Michigan

There have been two cases involving child custody and vaccines, where the vaccination status was being addressed in custody agreements, in Michigan. I am going to update one case, and discuss a new one.

On October 5, 2017 I addressed the case of Rebecca Bredow, a Michigan mother who signed a consent agreement to vaccinate her child, refused to follow through, and after apparently trying the judge’s patience one too many times – she apparently repeatedly violated orders relating to custody, and in this case, the judge ordered her jailed for seven days for contempt of court.

Another case was heard in the same Michigan court by the same judge on Monday, October 9. This post addresses both cases and provides an update.

During the hearing that ended with her jail sentence, James Horne’s lawyer (Mr. Horne is the boy’s father) requested reconsideration of the custody arrangements, and provision of 50:50 custody. The Judge refused to address the permanent custody arrangement then. But apparently on October 11 (or so) the judge did rule that Mr. Horne and Ms. Bredow would split custody 50:50.

The result of the case, therefore, is that the child was vaccinated, the father got more extensive custody. On her side, the mother got media attention and a chance to promote anti-vaccine misinformation – and smears against the father – publicly. Note that none of the media outlets that gave her a hearing – however sympathetic – were willing to repeat her personal claims against the father.

To add a bizarre and ugly postscript, anti-vaccine activist Del Bigtree seems to have been on a Los Angeles-bound flight with Mr. Horne (the father of the boy, and Ms. Bredow’s former husband). Upon debarking from their shared flight, Mr. Bigtree followed Mr. Horne around the airport shouting abuse at Mr. Horne, based on Mr. Bigtree’s imagined conclusions about where Mr. Horne’s son was and how he was doing (not, apparently, based on any personal knowledge). Mr. Bigtree’s behavior was captured, as was his wont, on video, and shared with Mr. Bigtree’s followers. In any case, Mr. Horne ignored him and continued on its way.

Within anti-vaccine circles, Mr. Bigtree’s conduct appeared to contribute to the anger against Mr. Horne for daring to demand that his son be vaccinated and protected from disease. However, I expect people outside the anti-vaccine movement would find the behavior of a man running after a stranger shouting abuse to reflect badly on the harasser, not the victim.

Child custody and vaccines – Lori Matheston

In the second case about child custody and vaccines, according to the court videos and news stories, the mother, Lori Matheston, agreed to follow the advice of a doctor and referee in relation to vaccinating her daughter – but refused after the doctor supported vaccinating the child.

Ms. Matheston tried to claim that the use of cell lines in vaccines contradicts her religious beliefs. The father’s attorney challenged that as untrue, but even if true, that position – apparently arrived at after the agreement – is only part of the picture. The father’s position and referee recommendations may overcome the mother’s religious beliefs – we do not know yet how much weight the judge will give to the claim in the face of the challenge and in the face of the previous agreement and the referee and doctor’s opinion.

Ms. Matheston also tried to make a claim that vaccines are dangerous for her child’s health – but provided no expert testimony on that. She tried to claim a genetic test through 23andMe would show the child should not be vaccinated.

She argues her family is pre-disposed to auto-immune injuries and a “23 and Me” genetic test will show that, and that the test should have been done before the referee made their determination.

This is all kinds of wrong. A history of autoimmune problems in the family is not a contraindication against vaccinating. Many autoimmune problems are not a reason not to vaccinate – for example, children with diabetes need vaccines more, not less. And 23andMe cannot be used this way – as the FDA made clear: 23 and me uses a technique that samples 1 out of 100,000 base pairs, so it can’t really determine which genes are responsible for what. They cannot diagnose diseases this way. In real medicine, if they think a gene is involved with a medical issue, they identify the gene with all of the base pairs, not just 0.001% of them.

And 23andMe does not cover anything that would be a barrier to vaccinating. In other words, the mother’s claim is mistaken.

The judge pointed out that scientific claims do require expert testimony. If Ms. Matheston was going to claim her daughter has a medical condition that prohibits vaccination, the right thing for her lawyer to do was provide the court with expert testimony by someone qualified to testify to it. Not the mother’s opinion. Especially not when, apparently, the child’s treating doctor supports vaccinating and does not see a barrier.

The judge could have dismissed the claim for the lack of expert witness, but did not. She gave the mother additional time to find an expert. The court reconvened on Thursday. What happened next was, in the words of one article, cringeworthy.

The lawyer – Ms. Amy Ruby – notified the court and opposite attorney only 24 hours before the hearing. To be fair, she did not have a lot of time to find an expert and notify the other side (due to her own error in not finding one in the first place).

Generally, certifying an expert should be straightforward. In this case, it wasn’t. An article for legal experts describes what happened:

When Dr. Bark took the stand, Ruby began asking her about vaccines. The judge called Ruby to the bench, explained to Ruby that she needed to establish Dr. Bark as an expert, and then took a break to give Ruby time to prepare. When Justice McDonalds returned, Ruby was no better, and neither was the expert.

McDonalds then explained to Ruby in detail that she needed to ask Dr. Bark what she did, what she specialized in and then request qualifying Dr. Bark as an expert.

Ruby tried again, but it did not go well.

When asked by Ruby what her specialty was, Dr. Bark started off on the somewhat the right foot, answering that she was a specialist in “adversomics.” Dr. Bark admitted that it was not a recognized medical specialty, but the term “… was coined by Gregory Poland, one of the most famous vaccinologists.”

Dr. Bark then became argumentative, making a snide comment to opposing counsel, and continuing to talk after opposing counsel raised an objection, leading Justice McDonalds to admonish her. Dr. Bark then started testifying about adverse reactions to vaccinations, rather than trying to establish her expertise.

McDonalds finally lost her patience. “The proper court procedure is not being followed …. it takes not a lot of time to learn how to introduce an expert witness. It hasn’t been done. Read the case law.”

Ruby and Dr. Bark try again. Finally, McDonalds began questioning Dr. Bark directly: “What have you done in the area of adversomics to qualify you as an expert in this area?” “Have you written any articles?”

Dr. Bark responded that yes, she had written an article on adversomics, but didn‘t remember where it was published, or what year. Opposing counsel objected, pointing out that no article was listed on Dr. Bark’s CV.

The saga continued to its ugly end. Justice McDonalds allowed Dr. Bark to testify as an expert, not as a specialist in immunology or in adversomics, but as a physican/surgeon, limiting her testimony to her experience in her practice.

So let’s see. If Ms. Ruby identified Dr. Bark as a former pediatrician and general physician who treats people claiming vaccines injuries – as the Judge ended up confirming – she may have had a basis for using her. Even then, if the attorney had more time, he could point out that according to Dr. Bark’s own site she specializes in homeopathy since 1993, and there are grounds to be hesitant about her ability to testify on standard medicine. But there would be a basis to allow her to testify.

That wasn’t what happened. First, although the article doesn’t reflect that, the video makes it clear that Dr. Bark claimed her specialty is “Adversonomics”. It’s pretty clear she had in mind Adversomics, drawing on an article by Dr. Gregory Poland – although the article is real, I expect Dr. Poland would cringe to hear an anti-vaccine doctor that mainly practices homeopathy describe herself as an expert in it, especially when she gets the term wrong.

Further, when Dr. Bark said she wrote an article on “Adversonomics”, she appears to have been, well, generously interpreting her previous work. This is the only article by Dr. Toni Bark, and the only article by T. Bark on vaccines, found on Pub Med:

It’s a letter to the editor in which she is a middle author. It does refer to “serious adverse outcomes” and tries to claim HPV vaccines are dangerous, but claiming (incorrectly) that HPV vaccines are dangerous is not an attempt to “better understand associations and mechanisms by which genetically-mediated individual variations in vaccine response and reactivity occur,” which is what Dr. Poland’s article explained adversomics to be.

And being unable to remember where the only publication you have in a scientific journal was published stretches credibility. Not including the publication in the CV does not look good, either.

If, as she says, Dr. Bark has served as an expert witness before (and I know she did, at least once successfully at the trial level), she should be prepared to describe what makes her a qualified expert. I suspect she went with adversomics (or in her words, “adversonomics”) because she wanted to say she is an expert in identifying who should or should not be vaccinated, as a prelude to saying the child here should not be. But with her inability to support it backfired.

Dr. Bark did not do herself any favor by calling the court a “monkey court” in a video outside the court or a personal live video. She is right that there was not a lot of time to prepare the testimony, but she still managed to present herself in a bad light on basic things about herself.

The judge did not make an immediate decision. She gave Mr. Ruby more time to either prepare this expert or find another expert witness and the father’s lawyer time to find his own expert. To remind readers, she did allow Dr. Bark to appear as a general physician and talk of her personal practice experience.

The judge appeared to be bending over backwards to give Ms. Matheston a chance to properly explain her case.

Judge McDonald appears no-nonsense, demanding, but also highly professional, on top of her cases, and very attentive to the parties before her.

Related

This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.